Commercial Truck Driver Advocates, Lawmakers Fight For Increased Protection under California’s AB5

In California, growing numbers of people are out of work because of the growing coronavirus outbreak. Now, lawmakers and political players in the state are attempting to ensure that more people can apply for unemployment to help them weather the storm of the coronavirus outbreak. 

These efforts are taking two forms — an assembly member in the California State Assembly says that workers who are misclassified as contractors should be eligible for unemployment, and commercial truck driver industry members say that more trucking contractors should be eligible for unemployment.

Assembly Member Says Misclassified Workers Should Be Eligible For Unemployment

In the California State Assembly, lawmakers are asking for employees who are improperly classified as contractors to be able to file for unemployment. Normally, California law prohibits contractors from collecting unemployment if they lose their source of income.

Additionally, contractors are also not eligible for benefits through their employers, though employees are. Some employers may improperly categorize workers as contractors to get out of paying their workers benefits. This unlawful practice then, in turn, prevents these misclassified workers from collecting unemployment if they lose their source of income.

In the current public health crisis, this may leave many people without income.  The effort to get more workers covered by unemployment is being headed by Assemblywoman Lorena Gonzalez, D-District 80. She made her argument to the California Labor and Workforce Development Agency’s Employment Development Department, saying that this change should be made quickly, to provide benefits to those affected by the pandemic that is COVID-19.

Assemblywoman Gonzalez was an author of Assembly Bill 5, a law that requires all workers who fit into certain categories to be considered employees and given benefits. She explains that the law is designed to protect workers, saying, “I authored AB 5 precisely for the moment we are in now. These Californians need our help, and EDD (the Employment Development Department) has the authority and legal framework to aggressively address misclassification and provide these workers with the benefits they deserve.

According to the Los Angeles Times, the effects of this bill are already being felt across industries, setting “a new standard for hiring independent contractors, requiring many to be reclassified as employees covered by minimum wage, overtime, workers’ compensation, unemployment and disability insurance.”

Commercial Truck Driver Advocates Seek Inclusion in Assembly Bill 5

In California, Assembly Bill 5 bars commercial truck driver contractors who own their own trucks from seeking unemployment if they are incorrectly categorized as a contractor by an employer. Owner-operators are truck drivers who own their own truck, but haul items owned by other companies. Now, the cities of Los Angeles and Oakland have asked that the Ninth Circuit lift the injunction that bars owner-operators from seeking unemployment under AB5. 

As mentioned above, Assembly Bill 5 aims to protect workers by ensuring that they cannot be subjected to an employer’s attempts to deny them benefits by misclassifying them as contractors. There are some exceptions to who is protected under this law, however. Truckers who work on a contract basis, particularly owner-operators, are one such exception.

AB5 was passed in 2019, and went into effect on Jan. 1, 2020, notes Trucking Info.

The California Trucking Association asked for an exception to be made for their industry. The court determined that the exception should be granted, as the association had requested, because the Federal Aviation Administration preempts the law from applying to them. According to the court, the federal law prohibits states from regulating prices, routes or services of motor carriers and trucking falls under this restriction.

Now, experts in California are fighting back against the earlier decision excluding truckers from AB5. The California Attorney General and the International Brotherhood of Teamsters are asking California federal court to reverse their decision that truckers should be excluded from AB5’s protections.

This effort is supported by the California Labor Federation, a coalition of a union, and city attorneys of Los Angeles and Oakland. In their eyes, the federal law does not preempt AB5, because AB5 does not prohibit companies from working with independent contractors, but instead, aims to protect these contractors. 

Additionally, these organizations argue that AB5 is not preempted by federal law in the truckers’ case because the federal law does not deal with certain aspects of occupational safety, occupational health, workers’ compensation, and unemployment. Rather, these issues are addressed by state law, say the attorney general and the International Brotherhood of Teamsters. 

These organizations have pointed to the coronavirus outbreak to argue that truckers should be eligible for benefits and unemployment under AB5 if they are misclassified, noting that workers in the trucking industry could be among those affected by job loss, possible economic downturn, and healthcare costs.

The Trucking Unemployment for Contractors Lawsuit is Case Nos. 20-55106 and 20-55017, in the U.S. Court of Appeals for the Ninth Circuit.

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